Roberson v. Clevenger

ELLISON, J. This action is on an account for some cordwood and lumber. Tbe result in tbe trial court was for tbe defendant. Neither party asked instructions but tbe trial court gave several of its own motion and plaintiff objected to them. Defendant’s answer admitted getting tbe greater portion of tbe account and tbe evidence tended to show a tender for what be considered to [625] be due, which., after suit was brought, was kept good by placing the money with the clerk of the court. It seems that defendant' settled a portion of the account by paying to one Livingston whom, it is contended, was plaintiff’s agent, though the latter denied this. It is contended by plaintiff that no tender was made and counsel recite the circumtances, surroundings and condition of the plaintiff to sustain the contention. It seems that plaintiff was deaf and could only be made to understand by signs and movements of the lips of the person conversing with him, but evidence shows that he transacted business and that he could be made to understand business affairs. We have no doubt that his condition did not disqualify him from receiving, accepting, or refusing a tender. The evidence of a tender in other respects was sufficient. There was also a question of the agency of Livingston. This need not be proved by affirmative evidence that he was formally appointed or constituted plaintiff’s agent, but it may be shown by facts and circumstances showing that the agency in fact existed, or that his acting as agent was ratified by plaintiff. There can be no question but that the instructions given by the court were correct in so far as legal propositions therein set forth are concerned. The only question which can be urged is as to their propriety in this case. That is to say, does the evidence justify them? Whether the evidence justifies the instruction and whether such evidence is sufficient to sustain the verdict is really all there is in the a,ppeal. In this view we have gone over the evidence preserved and the argument and suggestion of counsel and find that there was sufficient upon which to base the instructions and to sustain the verdict. The case, though quite small in amount, is somewhat complicated in its issues of fact and is therefore peculiarly one for final determination by a jury. A question is likewise made on the sufficiency of the [626] answer as to tbe plea of tender and payment. No objection was taken to tbe answer by demurrer and we are satisfied tbe objections now made are more technical than substantial. A full examination of tbe case has shown that we are without authority to interfere with the judgment and it is consequently affirmed. All concur.